Did You Know
Divorce Resources - Nadine Maleski LLC, Flemington NJ

Family Assets - Courts view a stay-at-home spouse as contributing to the family's assets. As such, if your spouse's assets or business has increased in value during the marriage, you may be entitled to a percentage of that growth upon divorce.

Modifications in Alimony and Child Support

Here are decisions of New Jersey Courts that address the issue of support:

  • When is a college student emancipated? It is a fact sensitive issue that may require a hearing. Parties may agree to voluntarily extend the period of support, but the appellate court would not permit them to prematurely emancipate a child in the unpublished case of Rybak-Petrolle v. Karcz. A 21 year old took a semester off from college, obtained full time work and re-enrolled in exclusively online classes. The Appellate Court reversed the lower court's emancipation of the child and ordered a full hearing and analysis to determine whether the child had moved beyond the sphere of influence of his parents.

  • Does New Jersey have jurisdiction to modify a temporary child support order when the parents and child have left the State? A temporary child support order was properly entered in New Jersey in 2011 when the parties and their child lived in New Jersey. No discovery deadlines were set and a final hearing was not scheduled. Subsequently, all parties left New Jersey. Plaintiff then attempted to modify the temporary order in New Jersey - arguing New Jersey retained jurisdiction because the initial order contemplated a hearing in New Jersey. The court declined jurisdiction, finding no distinction between a "temporary" or "final" order of child support under the Uniform Interstate Family Support Act (UIFSA), which broadly defines "child support" to include all orders of support. Relying on the comments to UIFSA, the Court found that the intent of the law was to prohibit parties from seeking modification of child support awards in the State in these circumstances. New Jersey retained jurisdiction to enforce the existing Order but not to make modifications according to the Family Court in Passaic County in the recent case of Johnson v. Bradshaw.

  • What happens when a father owes child support to two mothers in separate child support orders and Probation collects a lump sum from his income tax refund that is not enough to pay both? In Gourdine v. Cummings, the Ocean County trial court determined that the funds should be distributed on a pro rata basis. Since significantly more arrears were owed to Mother #2 than Mother #1, the majority of the intercepted funds should be applied to her account. Yet, Social Services had a lien on Mother #2's account. Normally federal law dictated that the lien be paid to Social Services after Mother 2's was paid in full. However, there was an exception to this procedure for funds intercepted from tax refunds. This required the funds first to be applied to the Social Services lien, and then to Mother #2.

  • In the case of J.B. v. W.B., reported in August 2013, our State Supreme Court addressed the issue of the modification of a negotiated agreement for the support of a disabled adult child to permit the establishment of a Specials Needs Trust to maintain eligibility for government benefits. The Court found that redirecting child support to a Special Needs Trust should not be considered extraordinary relief if the plan is in the child's best interests. However, to make this determination, the court requires a complete understanding of the disabled child's current needs, the cost to support those needs and the identity of funding resources. When a proposed plan relies on access to government benefits, it must address eligibility rules, timing to attain eligibility, the length of time before benefits are available after eligibility is determined, and methods of defraying costs without compromising the child's eligibility. As well, the plan must designate a trustee and address the conditions for disbursement of the corpus of the trust. The Supreme Court also clarified that it is within the discretion of the court to appoint a guardian ad litem to represent the disabled child's best interests, for example, if one parent opposes the creation of a Special Needs Trust.

  • In 20-2-9710 Hinz v. Oikonomou, the parties consented to the father paying over $40,000 to the mother in lump sum child support and agreed this was in full satisfaction of his obligation to contribute to their daughter's college costs. Eight years after this agreement, the Father filed a motion alleging that the Mother had squandered the funds he had given her, asked the court for a refund and for punitive damages, and that the mother and daughter be subjected to a mental health evaluation. The trial court denied all of the father's requests based on the paper submissions. On appeal, the court affirmed and found that the trial court had discretion to decide the matter without oral arguments, especially as a retroactive modification to child support is barred by New Jersey law.

  • In the unpublished case of "Anthony Scianni v. Angela Scianni" our appellate court confirmed that a party's support obligation (both alimony and child support) may be modified should there be a permanent and significant change in circumstances that would warrant such a recalculation. While the court stated that not all such applications require a plenary hearing, the court found that such a hearing was required in this particular instance given the conflicting claims made by the parties. Specifically, the court found that it was inappropriate for the trial court to make a credibility determination based on the papers submitted by each party and should have instead scheduled a hearing and taken direct testimony. At issue was Ms. Scianni's claims that her ex-husband had not suffered a reduction in income as he had claimed in his own papers, while still maintaining an expensive vacation home and driving a luxury vehicle. The trial court found these allegations raised "red flags" and denied Mr. Scianni's request to reduce his support obligations based on the credibility of Ms. Scianni's allegations. The appellate court reversed and ordered a hearing to resolve credibility determinations and to make findings of fact.

Contact Nadine Maleski at 908-237-9711 or online for help in understanding alimoney and child support.